ncls.org.uk

This is a interesting one:

DRS 04118 http://www.nic.uk/digitalAssets/10469_ncls.pdf


4 letter domain that is NCLS and the trademark is on NCSL

The "L" and the "S" are round the wrong way.

However due to the adverts on the domain you have to agree with the decision:

If the domain hadn't shown those adverts would he have got to keep the domain?

Also when you park a domain you don't force it to show those adverts? They would have come up by default? NCSL could be paying overture for all we know.

How does this fit in with Safeguards for the secondary market ("domainers")on: Updating the .uk Dispute Resolution Service ?

 

Balance of probability

The odds get sufficiently long from three to four characters i.e. whilst all three characters have gone four characters have not.

Such names should not be parked and this is why Nominet should be careful not to give a blanket impression that ppc is a legitmate use...as per drs review consultation implies.

I am of the belief that the domain names of three or four letters that do not spell generic words can still remain generic in respect to rights BUT can become abusive if parked because they do not spell generic words.....the difficulty comes with surnames.

The EU directive re the .EU was very interesting:-

A tier of rights were established
A requirement to have a legitimate interest in the name

DRS's in the domain name industry have resulted in too many questions left unanswered. IF DRS is to continue experts must hold the highest standards as they are replacing judges....Nominet should have a court fund so when they don't know the answer they fund the court case

Lee

 

The decision on whether use of a domain is abusive should be independent of the decision of what to do about the domain.

A change of useage would have been sufficient to stop passing off, and penalties for passing off shouldn't automatically include removal of the domain name.

Persistent passing off = a different matter 2 strikes and out etc.

-aqls-

 

Very trying

Judges make law....let them do their job.

Arbitration Services seem to have always lack credibility...cheap and dreadful

Lee

 

Hmm, this is something similar to what I have had recently with Namedrive parked pages.

Firstly, the sponsored links for.......... text at the top of the homepage contains (or actually, used to contain) the keywords that the user sets in the backend, I can't really believe that someone has actually entered the keywords '“Learning Gateway, National College for School Leadership UK, talk2learn Sign On, Leadership Development” into the backend but hey, its possible.

When a user uses the search box to perform a search the 'sponsored link for...' text changes to the term they searched for. In a recent DRS attempt for one of my domains, the complainent had done a search then taken a screenshot claiming it to be the homepage. Not saying thats happened here but just something to be aware of.

Namedrive have recently changed this text and the homepage now shows just 'sponsored listings', all other pages include the search term or the related links term if they click on one of those.

Another thing to be careful of is that Namedrive automatically updates the 'related links' section with terms that users are searching for, this can cause big problems if your domain potentially infringes on something and users are searching for terms related to that something. You can request this feature be turned off.

My 2 pence worth

Grant

 

The abusiveness of the registration, I think, depends to some extent on what the registrant used as their keywords when parking the name (if any).

I don't know the exact circumstances here so what follows is strictly hypothetical.

Let us say that you register that domain name and you set the keyword to "NCLS" within your parking settings. Or maybe you've registered it an not put any keyword in at all, and your parking provider has just stripped the URL of the .org.uk and submitted "NCLS" to the advertiser as a keyword on your behalf. Joe Public then visits Ncls.org.uk and he sees adverts for the competitors of NCSL. How has that happened?

As far as I know, here is how/why it could happen:

a) All of NCSL's competitors are bidding for PPC advertising under the keyword "NCLS". Presumably they know people may often get the letters mixed up and want to capitalise on that.

b) The PPC provider (which would usually be Google) gets no matches on NCLS from its advertisers' keywords and therefore tries to match the nearest word/s to try and be helpful. It finds matches from people bidding on NCSL and displays those instead. Still, very slippery behaviour from NCSL's competitors for bidding on NCSL's name.


So who are the bad guys there? Is it you the registrant? Or are the bad guys actually NCSL's competitors?


Obviously the other scenario is that you as a registrant are fully aware of NCSL and you put that and the names of their competitors and their business area into your parking keywords. That makes you the bad guy. Naughty naughty.


As I say, I don't know the exact circumstances in this case - I'm just making stuff up to see what people think.

Thoughts / comments?

 

Mistake

Grant on a similar note....

sandles.co.uk has been parked with namedrive then I suddenly thought better check to see what the adverts we for....saw that google we picking up holidays so got namedrive to immediately restrict to shoes, sandles..

So, mistakes do happen therefore (as I proposed) complainants should take reasonable steps prior to drs action.

Lee

 

As registrant really you would be responsible for what is on the site.

One solution is for the parking programs to vouch that they will not use your domains in an infringing manner - as really they are paying you rent to show adverts on them in a revenue split manner.

It might sharpen up the parking co's to realise its domainers that keep them where they are and not the other way around.

 

ncsl

There is no legitimate traffic to be derived from such a name, therefore whilst it remains generic for representing a business/service/company I do see why it can take unfair advantage of businesses/services/companies who are known by the name or abbreviation ncsl

Why would anyone park such a name?

The only defence I can see is....Names like this may derive very little or even no traffic thus no goodwill has been lost. If that is the case then it is reasonable to park such a name until a buyer is found for the generic name.

Don't forget the test isn't take advantage of anothers rights its take UNFAIR advantage of anothers rights.

The experts are bit behind the times on the above test....what was unfair 5 years ago isn't unfair today....web users are very savvy and will click away or use a search engine.

As I said to the experts the abuse comes from sponsored links it is this area that trade mark holders should concetrate on IF they really do want protect their rights

Lee

 

Google allows you to bid on someone elses brand name. It restricts those that complain (I don't know their full policy). but although you get no ads for easyjet etc, what about ghd or finecheeses
ghd - Google Search
fine cheeses - Google Search
or harrods, or littlewoods, or anyone else that has either chosen to allow it or hasn't decided yet (or hasn't bothered to pursue it).
harrods - Google Search
littlewoods - Google Search

I think therefore, that as google allows you to use a trademark in the ppc bid listings, the domain google.co.uk should be transferred to the complainant. No you will not allow google to change policy and add your trademark to the list of "trademarks" you will just take the domain. It doesn't matter if there are other people just as entitled to the domain under the inexact trademark domain rules, you are the complainant and you get first dibs.

I won't more than broach the subject of metatags using other brands names. I notice e.g. the sun .co.uk has barclaycard premiership, fa carling, etc in their metatags, and I don't know if that is with permission or not, but a) it wouldn't take too long to find big brands that have used others, and b) it shows that some brands are not anal about their useage but in fact encourage it.
So Mr Complainant, yes our DRS experts say that you have used a brand name and you get sun .co.uk as your own. (irrespective of whether god (who makes and runs the sun) is actually more entitled to it than you).

It is not necessary to take this argument further and find all mentions of brand names on any site to be offensive and make you liable for instant loss of your domain name.

i.e. a parking page is just the tip of the iceberg and the owners are easy to bully (by making it a £3000 charge just to defend some often spurious rubbish that an "expert" has been persuaded is "very important").


The less glib point is:
Some merchants would be quite happy to have someone generate leads for them by publishing a site that attracted targeted visitors for their product or brand. Some are anal about their brand and don't want that.

Nominet should not take the view that a domain should automatically be transferred to the anus.

If I was a big brand holder, I would be very happy to get targeted leads from anywhere I can, if I see someone has taken typos of my name I would admittedly try the easy route of going to the DRS and have the experts look up to me with big sloppy eyes as a big trademark holder, and saying how big I am, and how handsome and yes, sir I'll give you that domain. And failing that I'd go to court, and failing that I'd buy the leads. Same with any other way I found of getting leads.

Nominet should not put themselves in a position to have to cow tow to this crap. A domain once owned is owned. If you pass off then let the courts decide you have passed off and give appropriate penalties. If one of them is that you give over all your assets including the domain then so be it. And the courts had better give Nominet a court order in order before they do it.

But automatic giving over of a domain before a request to change content is, in my opinion,




unnecessary.

-aqls-

 

Why do Nominet not make it a rule that before making a complaint under DRS they must write to the domain registrant ,explain the complaint and ask them to stop any alleged infringment. Then if the registrant fails to stop the alleged infringment then a complaint may only then be lodged.

DG

 

I told pab

DG I have already suggested this to hazel prior to the drs review

Lee

 

Good, but lets hope Nominet actually listen to a sensible proposal. Rather than have the "mediation" stage of DRS it should be done before the complaint is issued. If a complainant contacts Nominet with a complaint Nominet should advise them to send a pre agreed letter to the registrant, even via Nominet perhaps, and then give the registrant 14 days to reply etc etc Those communications should be excluded from any following DRS much the same as in mediation.

DG

 

It's not strictly on the domain unless the nameservers are changed but even then content is supplied by a third party, if it's a forwarded domain one can't possibly be responsible for what is on sedo's website, can one and on that point I would have argued, however, the defendent is alledged to have put a description on manually either as meta or otherwise which he used to directly or indirectly benefit from the typo.

We may all be doing that now or similar but we shouldn't be, without that wording, he probably wouldn't have lost the domain as the other party wouldn't have cared. Four letters can go right to the wire as well.

 

It's been noted by me. This particular thread is rather interesting. Less of the mindless rants and more of the constructive suggestions for change than usual.

Hazel

 

Several reasons why they won't do this.

1. Respondent is put on notice and can simply remove DNS or transfer the domain name to another party, removing any previous pattern of abuse. Complainant's motives for making a complaint are more than likely to obtain the domain name rather than to simply prevent the infringement.

2. Complainant may claim that they wrote to Respondent when in fact they did not.

3. Respondent may claim that they did not receive the correspondance from the Complainant, in order to invalidate any subsequent DRS.

 

Contract Law

The mere sending of an item does not guarantee delivery. It would be the responsibility of the complainant to deliver its notice of abuse....no different to a court summons. It is also the registrants duty to keep his details up-to date.

Any scam will be picked up in time with severe penalties for any registrant who knowingly tries to get round the rules in a deceitful manner.

You have picked up on the biggest issue regarding the domain name....

The true motive of the complainant could be to get hold of the domain name NOT to stop the abuse

Other related points:-

Nominet should be involved in proactively TRYING to offer lawful products.

They could get involved in making prelimnary judgements that are not binding to the registrant but should be persuasive.

Pre vetting of new registration that fit certain criteria (cross checking the Patent Office database)

Lee

 

Yes agree those are all problems. To be honest I would be happy is DRS simply stuck rigidily to 2 things, TM law and Passing off law and that way we would know where we all stood. As it is the goal posts are either invisible or permanently moving and "experts" make up their own rules as they go along !

DG